United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE.
Mahla Dreiband is an Information Technology Specialist with
the Department of Homeland Security. In this pro se Title VII
suit, she alleges that her employer discriminated against her
on the basis of her national origin and disability,
retaliated against her for filing a complaint with the Equal
Employment Opportunity office, and subjected her to a hostile
work environment. She also seeks to recover damages under the
Equal Pay Act, alleging that she was the victim of wage
discrimination. Defendant now moves for summary judgment,
contending that Plaintiff has offered no material facts to
demonstrate that she suffered any adverse employment actions,
that she was subjected to discrimination or a hostile work
environment, or that she was the target of retaliation.
Instead, DHS asserts that the five-day suspension of which
she complains had a legitimate, non-discriminatory basis - a
physical altercation with another Department employee.
Agreeing, and also finding no jurisdiction for her pay claim,
the Court will grant the Motion.
must at this stage, the Court sets out the facts here in the
light most favorable to Plaintiff. Dreiband, whose national
origin is Iranian and who suffers from a disability of
“pre-arthritis, ” see ECF No. 14
(Amended Complaint), ¶¶ 11-12, was hired as an IT
specialist for DHS in 1989. Id., ¶ 15. Since
2003, she has worked for U.S. Immigration and Customs
Enforcement, which is a component of DHS. Id.,
¶ 16. At the time at issue in the Complaint, Plaintiff
worked at level GS-2210-12 in ICE's Office of the Chief
Information Officer. See Def. Exh. B-1 (Report of
Investigation) at 22.
1998 and 1999, Dreiband worked on the same team as Nancy Luc,
another IT specialist with DHS and the woman who, over a
decade later, Plaintiff would allege assaulted her in a gym
locker room. See Compl., ¶¶ 18-20. In
1998, Dreiband filed an EEO Complaint against Luc citing her
“harassment towards Plaintiff.” Id.,
¶¶ 13, 18. After requesting reassignment, Dreiband
was moved from Luc's team in or around 1999. Id.
Although they were no longer co-workers, Plaintiff and Luc
continued to work in the same office building. Id.,
¶ 19. On February 7, 2014, the two women found
themselves in the locker room of Vida Gym, a facility at
which ICE employees have membership. Id., ¶ 27.
While the specific facts of what happened in the gym are in
dispute, both sides agree that Dreiband and Luc were involved
in a physical altercation that resulted in the former being
bitten by the latter. Id., ¶¶ 28-29; ECF
No. 20-1 (DSMF), ¶ 3. The police were called to the
scene, and both women were subsequently arrested.
Id., ¶ 5.
this incident, Defendant opened an administrative inquiry,
which ultimately led to the suspension of both women.
See Def. Exh. G-3 at 168. On July 18, 2014,
Plaintiff was issued a notice of a proposed, five-day
suspension without pay for engaging in conduct unbecoming a
federal employee. See Def. Exh. G-4 at 171. Dreiband
responded to the proposed suspension via her attorney on
August 7, 2014, stating that the penalty should not be
sustained because “Ms. Dreiband was the innocent victim
of a malicious attack by Ms. Luc.” ECF No. 20-9
(Response to Proposed Suspension). That October, the Acting
Chief Information Officer, Steven Smith, issued a decision
sustaining the charges and the penalty, finding that the
“alleged misconduct [was] supported by a preponderance
of the evidence.” Def. Exh. G-6 at 189. Plaintiff
served her five-day suspension from October 9 to October 13,
and Luc served hers from November 7 to November 11.
See DSMF, ¶¶ 11-12. Dreiband alleges that
“[f]ollowing the attack, ” Luc “told
numerous coworkers and supervisors” that Plaintiff had
initiated the fight at the gym. See Compl., ¶
36. Although Dreiband states that she complained to
management about such statements, she asserts that her
supervisors did not intervene. Id., ¶ 37.
next relevant incident occurred on May 2, 2014, when an ICE
manager sent Plaintiff, as the property custodian for her
office, an email identifying missing government property.
See Def. Exh. G-12 at 242. Dreiband responded that
she had located the assets, id. at 244, but Leonard
Pulley, the Chief of the Network and Infrastructure Services
Branch, replied that the inventory had in fact been located
by two other individuals and that two items remained missing.
Id. at 242-43. Plaintiff in turn responded that she
was confused about Pulley's characterization, but he did
not reply to that email. Id. at 242.
same day, Plaintiff received her Fiscal Year 2014 mid-year
performance evaluation. Dreiband's supervisor gave her a
rating of “fully satisfactory” for the elements
of technical proficiency, customer service, project
management, and information-systems security. See
Def. Exh. G-10 at 215-25. For the element of teamwork,
cooperation, and collaboration, however, Plaintiff's
evaluation stated that she “ha[d] much room for
improvement, ” noting that she was “involved in
an altercation in early FY14 with another ICE . . .
employee” and that she had been counseled on two
separate occasions regarding management policy and guidance.
Id. at 222-23.
October 20, 2014, Plaintiff contacted an EEO Counselor
regarding her suspension and treatment after the gym
altercation. See Def. Exh. B-1 at 22. Three months
later, ICE notified Dreiband that her counseling had
concluded and informed her of her right to file a formal
complaint, a step she took on January 28, 2015. See
Def. Exh. A-1 at 17-19. Plaintiff's complaint was filed
with ICE's Office of Diversity and Civil Rights (ODCR)
and presented the following claim: ICE discriminated against
her and subjected her to a hostile work environment based on
national origin, religion, age, disability, and reprisal when
(1) a co-worker physically attacked Plaintiff; (2) during an
internal investigation of the incident, the co-worker made
false statements about Dreiband's work performance and
told the investigator that Plaintiff was moved to a different
office fifteen years prior; (3) management issued Dreiband an
unfavorable midyear review and accused her of inappropriate
accounting for government property; and (4) Plaintiff was
suspended for five days. See Def. Exhs. C-2 at 97,
C-3 at 102.
August 2015, ODCR provided Dreiband with a Report of
Investigation (ROI) and ultimately the final agency decision.
See Def. Exhs. D (Notice Letter), E (FAD Request).
She responded by filing suit in this Court on May 12, 2017.
Dreiband's Amended Complaint, which was filed in March
2018, alleged three grounds for relief under Title VII -
national-origin discrimination, hostile work environment, and
retaliation - and three others under the Rehabilitation Act -
disability discrimination, retaliation, and hostile-work
environment. See Compl., ¶ 1. Plaintiff also
alleged, although she did not include any relevant count,
that her action sought to “recover damages” under
the Equal Pay Act. Id, ¶ 2. DHS now moves to
dismiss or, in the alternative, for summary judgment.
See ECF No. 17.
Court considers the Motion under the summary-judgment
standard, it sets out that one alone. Summary judgment may be
granted if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a); see
also Anderson v. Liberty Lobby, Inc.,477 U.S. 242,
247-48 (1986); Holcomb v. Powell433 F.3d 889, 895
(D.C. Cir. 2006). A fact is “material” if it is
capable of affecting the substantive outcome of the
litigation. See Liberty Lobby, 477 U.S. at 248;
Holcomb, 433 F.3d at 895. A dispute is
“genuine” if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party. See Scott v. Harris,550 U.S. 372, 380
(2007); Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion” by
“citing to particular ...